Virtual
reality (VR) describes a computer-generated simulation of a three-dimensional
(3D) space, which allows users to feel as if they are exploring a physical
environment. To achieve this effect, a user wears a headset that performs the
dual functions of displaying the 3D images and blocking out physical reality.
By tracking the movements of the user’s head, the displayed images may be
adjusted to create the sense of being able to view an environment in 360
degrees.
The year 2016 was a watershed moment for
virtual reality due to the release of several new VR systems for consumer
purchase. Ranging from high-end systems, such as Oculus Rift, to inexpensive
cardboard headsets designed to work with smartphones, there are now multiple
options available for those interested in experiencing virtual reality
firsthand.
While the rise of virtual reality thus
far has been driven mostly by video games—exemplified by the recent release of
the PlayStation VR headset—the investments currently being made by prominent
tech companies signal that virtual reality will soon change the way we surf the
Internet and engage with social media.
In addition, creative programs like Tilt
Brush already offer artists new and unique ways to create genre-defying works
in VR environments. As VR tools continue to improve and the number of VR
adopters increases, there will be a marked proliferation of creative works in
the VR context. For example, the Internet platform Second Life is a virtual
world in which users explore and interact using avatars. Second Life has its
own internal currency and a large market for “in-world” digital goods,
including real estate, artwork, avatar clothing, and even pets. Strong
protection for VR works will ensure that creators are incentivized to innovate
in this new area.
This article discusses the applicability
of copyright to virtual reality and some of the novel issues presented by
intellectual property protection of VR works.
Copyright Protection
While virtual reality is still in its
infant stages, artists are already finding that creating works in a virtual 3D
space allows them to do things that were previously impossible. Virtual reality
allows artists to “paint” using color and light, and incorporate motion and
sound to create threedimensional works that appear to float in the air. These
creations defy categorization because they may combine elements of
illustration, sculpture, music, and cinematography. In addition, the VR context
allows users to interact with works in ways not possible in physical reality,
such as by walking through an object to examine multiple layers.
The Thai Copyright Act B.E. 2537 (1994)
was designed to be adaptable so that it could encompass new types of works.
However, the Act does not explicitly provide for protection of creative works
in virtual reality, which raises the question of whether such works are
protected under copyright.
Section 6 of the Copyright Act specifies
that a “[c]opyright work under this Act means a work of authorship in the form
of a literary, dramatic, artistic, musical, audiovisual, cinematographic, sound
recording, sound and video broadcasting work or any other work in the literary,
scientific or artistic field whatever the mode or form of its expression”
(emphasis added).
The above language demonstrates that the
Copyright Act is not limited to the technologies that were in existence at the
time of drafting. As long as a new work can be classified as part of the
literary, scientific, or artistic fields, and the work satisfies the other
requirements of the Act, it will be protectable by copyright. Further, Thailand
protects software under copyright law as a literary work. As VR works are
represented by software, they will be protected by copyright regardless of the
form they take.
While works are automatically protected
by copyright upon their creation, rights holders should undertake recordation
of their works with Thailand’s Department of Intellectual Property to establish
prima facie evidence of copyright ownership and subsistence in the event they
need to take legal action against an infringer.
Infringement
Copyright provides an associated bundle
of exclusive rights for copyright owners, such as the right to reproduce, rent,
assign, license, communicate to the public, and create adaptations or
derivative works. Because VR works are protected under copyright, other parties
may not make the above uses of a work without the permission of the copyright
owner. The flip side of this is that a VR reproduction of a real-world work
will also be considered infringement as a derivative work.
While we are still in the early days of
virtual reality adoption, VR platforms should create clear Terms of Service
stating that users may not use the platform to infringe the intellectual
property rights of other parties. Users who violate these terms by creating
infringing content may be blocked or removed from the service.
As adoption of virtual reality grows, VR
platforms will also need to be protected against infringing uses of their
services, much as user-generated content sites are today. If VR platforms allow
users to interact with one another in virtual space via the Internet, VR
platforms will fall under the broad definition of internet service providers
(ISPs) found in the Copyright Act. Section 32/3 of the Copyright Act grants
immunity to ISPs against infringing content placed on their services by other
parties, provided that they comply with court orders to remove such content.
This immunity should encourage VR platforms to allow robust innovation by their
users without fear of being held liable for any infringing activity their users
may undertake.
Enforcement
The intangible nature of VR works will
make enforcement against infringing uses difficult, just as the Internet has
presented numerous challenges for creators seeking to enforce their IP rights
against online infringers. Jurisdiction over VR disputes will likely be tested
early, and courts will have to determine whether to make jurisdiction dependent
on the location of the creator, infringer, infringement, or servers hosting the
virtual reality. These locations may be on opposite sides of the world, and
each one will create different enforcement issues.
VR platforms can assist content owners
by creating internal notification and removal procedures for infringing
content. Creating these internal procedures will demonstrate the goodwill of
the VR platform and encourage content creators to participate in virtual
reality. Additionally, by creating dependable methods for removal of infringing
content, content owners may protect their works while avoiding costly and
lengthy litigation.
Outlook
Due to its ability to create the
impression of visiting new worlds, virtual reality has the potential to
transform areas as disparate as entertainment, education, and tourism. While we
cannot predict the path that virtual reality will eventually take, the
innovative ways that virtual reality is already being used demonstrate that new
markets for creative VR works will continue to proliferate. VR works need to
receive strong protection under intellectual property laws in order to
encourage creators to adopt virtual reality as their medium of choice.
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